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A recurring problem in modern litigation is the inadvertent disclosure of materials subject to the attorney-client privilege or the attorney work product protection. New Federal Rule of Evidence 502 changes the rules concerning waiver of privilege in all Federal and many State court cases, thereby reducing the risk that inadvertent disclosures will constitute a wavier of attorney client privilege or work product protection. But the new rule requires careful application. Important risks remain. Inadvertent disclosure of privileged or protected information too easily occurs when massive numbers of documents or files make it impractical or prohibitively expensive to review every item individually. The proverbial privileged document needle gets lost in the e-discovery haystack and is overlooked. Later, when opposing counsel recognizes that she has a potentially privileged document and brings this to the attention of disclosing counsel, there may be a fight as to whether the document will be returned, or whether the disclosure constitutes a wavier of any privilege related to the information. Under existing State and Federal law, release of privileged or protected information to an adversary, even if inadvertent, may constitute a waiver of the privilege or protection with regard to the information or document disclosed or, worse, to all documents and other information related to the same topic. Invoking the "claw" Amendments to Federal Rule of Civil Procedure 26(b), adopted in December 2006, were aimed at reducing the risks of waiver from inadvertent disclosures. Rule 26(b) provides that if privileged information is produced, the party making the claim of privilege may notify any party that received the information of the privilege claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has, must not use or disclose the information until the privilege claim is resolved; must t

Enterprise employees frequently use social networking tools, most notably Web-based applications. It's no surprise more organizations are wondering what happens if social networking data becomes relevant to an e-discovery investigation. How does an enterprise go about discovering and assessing Web 2.0 data? How responsible is an organization, legally speaking, for the information that's out there in the Web 2.0 world? What risks arise from e-discovery as it relates to Web 2.0 data, and how can you mitigate them? In this tip, we will look at e-discovery as it relates to Web 2.0 and consider the strongest options for minimizing risks to the organization. E-discovery basics We begin with a quick look at what e-discovery is and how it can create risk. Essentially, e-discovery is the electronic extension of the legal process of discovery, which Wikipedia defines as "the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production and depositions." If you're an IT person, not a lawyer, it's important to note that the rules governing the discovery process now require plaintiffs to address all electronically stored information or ESI. In other words, if your organization faces litigation, it will have to deal with the issue of e-discovery, which will entail a whole lot more than turning over some old emails. Depending upon your role in the organization, the first you may hear of this is a "notice of litigation" with perhaps a "litigation hold directive" containing a "preservation directive." Here is a generic e-discovery request below. Apart from a few limiting factors, such as subject matter, named persons and a specified time period, the scope of such a notice is likely to be broad; blame standard procedure, not some high-powered attorney pushing his or her lu

On Wednesday, February 11, 2009, the Data Protection Working Party, an independent European advisory body on data protection and privacy, released its Working Document 1-2009 (.pdf) on pre-trial discovery for cross border civil litigation. The Working Document attempts to reconcile the tension between U.S. discovery rules and the European Union's Directive 95/46/EC (.pdf), which outlines the EU's privacy requirements. What follows is a summary of the Working Document and an analysis of how it begins to bridge the gap between U.S. discovery rules and the European privacy framework. The Working Document offers guidance to EU data controllers responding to U.S. discovery requests. As the Working Document explains, those controllers often find themselves in a bind. On the one hand, U.S. law allows for broad discovery, which may require a controller to provide, or "process," personal data of customers or employees. On the other hand, Article 7 of EU Directive 95/46 limits a member state's authority to process such data. Under Article 7, a member state may process personal data only if one of six identified grounds for processing applies. The Working Document considers the Article 7 grounds most likely to supply a legitimate basis for compliance with a discovery request - namely 1) consent, 2) necessary for compliance with a legal obligation, and 3) necessary for the purposes of a legitimate interest, where such interests are not "overridden by the interests for fundamental rights and freedoms of the data subject." Recognizing that the "interests of justice would be served by not unnecessarily limiting the ability of an organisation to act to promote or defend a legal right," the Working Document suggests that the third basis - necessary for the purposes of a legitimate interest - will often provide a ground for processing data in response to a U.S. discovery request.

Twitter posts may seem different from e-mail, but legally they aren't, so more companies are including them in their e-discovery policies, reports InformationWeek's Bob Evans. The subject is more than a little confusing, Evans finds, but one thing is clear: If you do have a policy on Twitter posts, it had better be enforced.

Attorneys can customize discovery requests for online postings, status updates, blog entries, photos, or videos to fit the facts of each case. Deposition questions about online activity, changing privacy settings, and deleting online material likewise are fair game if reasonably related to the case at hand.